GANESH PRASAD RAY SON OF KALU RAY AND RAJDEO RAY SON OF GANESH PRASAD RAY Vs. STATE OF BIHAR AND SUSHIL KUMAR SINHA SON OF BHOLA NATH SINHA

JUDGEMENT

(1.) The two petitioners, who are F.I.R. named accused in Dandkhora P.S. Case No. 59 of 2003 as also in the Protest-cum-Complaint Petition No. 449 of 2005 filed by the informant/complainant against the final form submitted by the police in the aforesaid police case, have prayed for the quashing of the order dated 15.12.2005 passed in the said Complaint Case No. 449 of 2005 dismissing the complaint and the consequential order dated 27.2.2007 passed in Cr. Revision No. 185 of 2005 of Sri Mazahar Imam, the learned Sessions Judge, Katihar, whereby he allowed the revision and remitted the case back to the court below to pass appropriate orders in accordance with law on the basis of the materials available on the record in the light of the observations made.

(2.) One Sushil Kumar Sinha, the complainant/informant, impleaded herein as Opp. Party No. 2, initially filed a Complaint Case No. 8182 of 2003 on 18.11.2003 against the petitioners for commission of offences under Sections 406, 420 and 120B I.P.C. Inter alia alleging that he was a dealer under the Public Distribution System in Village-Bijaili since long and accused No. 1 being his class friend in the school, he had implicit faith on him. It is alleged that accused No. 1 was elected as member of Zila Parishad of Dandkhora Block and in the said election, Opp. Party No. 2 herein had rendered financial aid of Rs. 15, 000/- in presence of petitioner No. 2 and the said amount was not being returned' by accused No. 1 on one pretext or the other, notwithstanding several requests by the complainant. It is said that when money was required urgently for treatment of his wife accused No. 1 promised to return the same within a month, but when the same was not complied with the complainant allegedly went to the house of accused Nos. 1 and 2 demanding return of the money but accused No. 1 showed his inability to return the amount immediately. It is said that a panchaya t was held whereat Dashanand Rai, younger brother of accused No. 1 was one of the Panches and all of them requested accused No. 1 to return the amount to the complainant. The said accused No. 1 is said to have demanded one week's time to return the amount but the compliance was never affected. Lastly on 13.11.2003 when the complainant along with Sukhdeo Rai went to the house of accused and demanded the amount, both the accused flatly refused to return the money and they also threatened the complainant to leave the premises forthwith or else he would be implicated in cases under the Harijan Atrocities Act. Exchange of wordy duels followed which attracted several persons including the witnesses and when the witnesses attempted to intervene, they too were threatened with serious consequences.

(3.) The said complaint was sent to the concerned Police Station under Section 156(3) Cr.P.C. and the police after due investigation submitted a final form on 30.12.2004 as the case was found untrue and recommendations were made for proceeding against the complainant/informant under Sections 182/211 I.P.C. It appears that having accepted the final form, the learned Chief Judicial Magistrate, proceeded with the protest petition as a complaint case and having considered the materials available on record surfacing from the enquiry under Section 202 Cr.P.C. dismissed the complaint as no prima facie case had been made out and the dispute was civil in nature based on oral contract between the parties. The informant/complainant preferred Cr. Revision No. 185 of 2005 for setting aside the order dated 15.12.2005 passed by the learned Chief Judicial Magistrate and the said Revision was allowed by the impugned order on a finding that on perusal of the protest petition and evidence available on record a prima facie case was indeed made out.